Is he the right man for the job? In reviewing ‘Hobby Lobby’ opinion, Jews see reasons to diverge over Neil Gorsuch

Neil Gorsuch

BY RON KAMPEASWASHINGTON (JTA) – On June 27, 2013, the U.S. Court of Appeals for the 10th Circuit, based in Denver, handed down a decision that would make history a year later when it was upheld by the Supreme Court: Closely held corporations have the same religious freedom rights as individuals.

The majority decision in the case then called Sebelius v. Hobby Lobby, 67 pages long, had attached to it several concurrences, including one of 18 pages by Judge Neil Gorsuch.

Gorsuch was nominated in January by President Donald Trump to the vacant Supreme Court position. Now Jewish groups are closely reading his concurrence to understand how this conservative would treat church-state issues.

Sebelius v. Hobby Lobby (to become known as Burwell v. Hobby Lobby by the time it reached the Supreme Court in 2014) split a Jewish community that just 20 or so years earlier reached rare consensus supporting the Religious Freedom Restoration Act (RFRA). Jewish groups welcomed and lobbied for RFRA, which was passed in 1993 because it allowed for consideration of religion when a law “substantially burdens” belief. Prompted by a 1990 Supreme Court ruling that religious beliefs must always defer to “the law of the land,” the measure helped ease zoning laws that burdened the construction or expansion of synagogues, protected observant Jews who were not available to work on Saturday and enabled a Jewish inmate to successfully sue the Florida prison system for kosher meals.

Hobby Lobby argued —and the appellate and Supreme Court agreed — that RFRA entitled it, a corporation, to a similar exemption that the Obama administration was extending to religious nonprofits. Under the exemptions, religious nonprofits could opt out of a government mandate that required companies providing their employees with health care to include contraceptive coverage.

Liberal Jewish groups backed the government in arguing that applying religious freedoms to a commercial enterprise mocked the principle that RFRA was meant to protect individuals from more powerful interests. Orthodox Jewish groups backed Hobby Lobby, saying that employers and employees deserved similar freedoms.

Gorsuch’s concurrence, joined by two other judges on the appellate court, took the majority’s decision in two additional directions:

He argued that the individuals who own the business—in this case, the Green family, who are evangelical Christians—are entitled under RFRA to the same freedoms extended to the corporation by the majority opinion.

“As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong,” Gorsuch wrote, referring to the Affordable Care Act. “As they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows.”

Gorsuch also argued that precedent protects “sincerely held” beliefs, period, however noxious they may seem at a given historical moment, or how divorced the expression of that belief seems from commonly understood religious practice. He cited a case involving a pacifist Jehovah’s Witness who refused to work on an assembly line manufacturing tank turrets, although he agreed to help manufacture sheet metal, which might end up used in armaments.

“That’s the line he understood his faith to draw when it came to complicity in war-making, an activity itself forbidden by his faith,” Gorsuch wrote.

“The Supreme Court acknowledged this line surely wasn’t the same many others would draw, and that it wasn’t even necessarily the same line other adherents to the plaintiff’s own faith might always draw. But the Court proceeded to hold that it was not, is not, the place of courts of law to question the correctness or the consistency of tenets of religious faith, only to protect the exercise of faith. No different result can reasonably follow here.”

JTA asked Jewish groups and individuals who closely watched Hobby Lobby to reread Gorsuch’s concurrence and share what lessons they could draw about Trump’s pick to fill the seat left open by the death of Antonin Scalia.

Here are some of their impressions:

Deborah Lauter, the senior vice president at the Anti-Defamation League, which joined amicus briefs against Hobby Lobby, noted that the ADL originally supported RFRA. The ADL agreed with Gorsuch when he wrote that “[t]he Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs.”

“ADL, however, has serious concerns with the remaining substance of the concurrence,” she wrote in an e-mail. “It appears to exceed the U.S. Supreme Court’s overly broad interpretation of RFRA in the Hobby Lobby decision, which effectively transformed the statute into a sword for imposing religious beliefs to the detriment of others. The concurrence would allow a plaintiff meet its evidentiary burden under RFRA by the mere subjective assertion that a federal law creates a ‘substantial burden’ on religious exercise rather than requiring an objective judicial determination, a standard, which other courts have applied. And once this RFRA requirement is established, plaintiffs usually prevail.”

The subjective assertion of a burden also concerned Rabbi David Saperstein, who at the time of the decision directed the Reform movement’s Religious Action Center, which also joined in an amicus brief against Hobby Lobby.

“Although it wasn’t the main focus of his concurrence, the wording suggests that so long as a religious belief is sincerely held by a person, that answers the substantial burden requirement of RFRA,” Saperstein said in an interview.

Saperstein, while cautioning it is difficult to infer sweeping conclusions about a judicial philosophy from a concurrence, said Gorsuch’s views as expressed here would be of concern should Trump sign an executive order establishing sweeping religious exemptions to anti-discrimination laws. A draft of just such an order was obtained last month by The Investigative Fund and The Nation.

“That kind of approach threatens to undercut the entire structure of civil rights laws and protections,” said Saperstein, who until January was the Obama administration’s religious freedoms envoy.

Nathan Diament, the Washington director of the Orthodox Union, which joined an amicus brief defending Hobby Lobby, said Gorsuch’s reasoning should please those who belong to minority faiths. Diament quoted the full passage excerpted by Lauter, in which Gorsuch argued that RFRA’s “most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

“This is the kind of thinking and jurisprudence we should want to see from a Supreme Court justice,” Diament said in an e-mail.

Abba Cohen, the Washington director of the haredi Orthodox Agudath Israel of America, in an e-mail also alluded to Gorsuch’s argument “strongly affirming that sincerity, not popularity, is the judicial yardstick.” He also admired how Gorsuch extended RFRA not just to the corporation, but to the individuals who own it.

“Advocates often talk about the evil of forcing upon employees the Hobson’s choice between religion and livelihood, but Judge Gorsuch reminds us that protecting against such unfairness is no less compelling—no less personal—when dealing with employers,” he said. Agudah filed a brief in defense of Hobby Lobby in the case.

Bruce Abramson and Jeff Ballabon, who have advocated for Trump and his nominees in Jewish publications including JTA, said in an e-mail that by upholding of the rights of the Greens as individual employers not to assist employees in what they regard as sinful behavior, Gorsuch’s concurrence comports with Jewish teachings as well as with precedent.

“He opened with a sensitive reminder of a concept central to Jewish law and morality that modern society often forgets: ‘For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability,’” Abramson and Ballabon wrote in an e-mail, quoting Gorsuch. “The Torah itself prohibits ‘putting a stumbling block before a blind person’ (Vayikra 19:24), a metaphor for enabling someone else’s violation. There are both biblical and rabbinic Jewish laws that forbid assisting someone who is committing a sin.”

Fears Employee VulnerabilityIlana Flemming, the advocacy manager for Jewish Women International, which joined an amicus brief opposing Hobby Lobby, said that Gorsuch’s ruling made employees vulnerable to sudden changes in their coverage should there be a change in ownership.

“If the owners change, then the beliefs change, and the new owners could bring a claim,” she said in an interview.

That coupled with the rights extended to corporations under the Supreme Court’s interpretation of RFRA in its 2014 ruling disempowers employees, Flemming said.

“It gives the company owners an enormous amount of leeway and power to object to presumably any health care service, drawing a broad exemption, where a company owner or the corporation itself can claim a religious objection that has a real impact on what health care an employee can access,” she said.

That also was a concern for Jody Rabhan, the director of Washington operations for the National Council of Jewish Women, which also filed an amicus brief against Hobby Lobby. She said Gorsuch’s thinking reflected a trend among conservative justices to favor businesses over employees.

“It is a dangerous trend and is a big reason NCJW came out in opposition to his nomination,” Rabhan said in an interview. “No one should get their boss’s approval to do what she believes is right for herself, her body, her family.”

Marc Stern, the American Jewish Committee’s general counsel, said rereading Gorsuch reminded him of the culture wars that troubled him at the time of the Supreme Court fight.

AJC had sought a middle ground, filing an amicus brief on the government’s behalf, but avoiding the difficult arguments ADL and the other groups engaged in about the place of the government in the practice of religion. Instead, AJC said there was a compelling government interest in providing health coverage, including contraceptives.

“The gap in moral perceptions is now so great that most people on either side of it don’t understand the other side,” Stern said. “It’s why people were talking by each other and there was really no way the Obama administration could make everybody happy.”